Mallen v Masterwork, Inc.

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Mallen v Masterwork, Inc. 2011 NY Slip Op 32293(U) August 22, 2011 Nassau County Docket Number: 9056/09 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON; DENISE L. SHER Acting Supreme Cour Justice TRIAL/IAS PART 32 NASSAU COUNTY ROBERT L. MALLEN Index No. : 9056/09 Plaintiff Motion Seq. Nos. : 01 Motion Dates: 04/06/11 04/27/11 - against - . MASTERWORK , INC. and GREGORY A. DEVITA Defendants. The followine papers have been read on these motions: Papers Numbered Notice of Motion (Seq. No. 01). Affirmation and Exhibits and Memorandum of Law Notice of Cross- Motion (Seq. No. 02) and Affidavit and Memorandum of Law Afavit in Opposition to Notice of Motion (Seq. No. 01) Affrmation in Opposition to Cross- Motion (Seq. No. 02) and Replv Affirmation in Support of Notice of Motion (Seq. No. 01) Reply Affirmation Defendant Gregory A. DeVita (" DeVita ) moves (Seq. No. 01), pursuant to CPLR 3212 , for an order granting summar judgment and dismissing the Amended Verified Complaint. Plaintiff opposes defendant DeVita s motion and cross-moves (Seq. No. 02), pursuant to CPLR 3212 , for an order granting sumar judgment and scheduling this matter for an Inquest on the issue of damages. Defendant De Vita opposes plaintiff s cross-motion. Defendant Masterwork , Inc. is no longer in the case. [* 2] Plaintiff commenced this action to recover damages for personal injuries allegedly sustained while he was working at the premises located at 32 Sunview Drive , Glen Cove , New York ("the premises ). The premises is a one- family dwellng owned by defendant DeVita. On May 2 , 2008 , at approximately 9: 15 a. , plaintiff allegedly " fell when he was crossing from one scaffold to another. Both scaffolds were attached to the garage " located at the premises. See Defendant DeVita s Affrmation in Support Exhibit On the date of the accident , plaintiff, a carenter , was working for defendant Masterwork , Inc. ("Masterwork"). Defendant DeVita had hired defendant Masterwork to perform renovation work on his garage which also housed a gym on the second floor. Defendant DeVita testified that he hired defendant Masterwork because Steve Szczesniak, the owner of defendant Masterwork , had been performing work for him at his home for at least fifteen to twenty years and he trsted him. See Defendant DeVita s Affirmation in Support Exhibit E pp. 10. On October 29 2007 , defendant DeVita wrote a letter to Mr. Baron , Building Deparment Administration of the Town of Glen Cove , wherein he indicated that he would " act as contractor for the construction of my garage , house and roof. " Defendant De Vita fuher fuished " insurance information for (his) subs. See Defendant DeVita s Affrmation in Support Exhibit G. In 2009 , plaintiff commenced this action alleging violations of New York Labor Law 200 240 and 240(6). Thereafter , plaintiff served a Verified Bil of Pariculars which alleged inter alia that defendants violated New York Labor Law ~~ 240(1), 241(6) and 200. The Verified Bil of Pariculars also claimed violations of New York State Industrial Code Sections [* 3] 23- 1.7(b)(1), 23- 50)(1) and (2), 23- 5.3(e) and 23- 5. 13 (d) and raised common- law negligence allegations against defendant De Vita. The first two causes of action in the Verified Complaint were alleged against defendant Masterwork and the third and fourth causes of action were alleged against defendant De Vita. As previously stated , the action has been discontinued against defendant Masterwork. Defendant DeVita moves for summar judgment dismissing plaintiffs Labor Law ~~ 240 (1) and 241(6) claims on the grounds that there is no question of fact regarding defendant DeVita s entitlement to the single family homeowner exception to the Labor Law. As to plaintiffs Labor Law ~ 200 and common law negligence causes of action argues that he did not supervise , direct or control plaintiffs , defendant DeVita work. In support thereof, defendant DeVita relies upon plaintiffs Examination Before Trial ("EBT") testimony, his own EBT testimony and Steven Szczesniak' s EBT testimony. See Defendant DeVita s Affirmation in Support Exhibits D , E and F. Overall , defendant De Vita. asserts that "the evidence unequivocally demonstrates that defendant Gregory De Vita did not supervise , direct or control plaintiff s work and is entitled to the single- family homeowner exception. Masterwork was hired by Dr. DeVita as the general contractor for the garage renovation project. Masterwork hired plaintiff and supervised plaintiff s work. Masterwork hired all the other contractors for the proj selected and purchased all ofthe constrction materials ect and Masterwork for the job. Dr. DeVita lived on the premises but did not inspect the work. When the work was completed by the owner of Masterwork to come and look at it , which he did , Dr. Devita was advised , and he was pleased with it. Dr. De Vita did have the typical homeowner involvement in that he had input on aesthetic [* 4] decisions and he purchased several ceiling fans for Masterwork to install in the garage/gym . structure. Defendant DeVita s Memorandum of Law. See Plaintiff opposes defendant DeVita s motion arguing that defendant DeVita represented to the City of Glen Cove that he was the contractor. Furhermore , the EBT tesrtimony of both defendant De Vita and Steven Szczesniak show that defendant De Vita exercised the requisite degree of control over the project. In paricular , defendant DeVita acknowledged discussing the plans with the architect several times by phone or mail , where he admitted that he was not always happy with the architect' s drawings and that they were changed to his satisfaction. See Defendant DeVita s Affrmation in Support Exhibit Epp. 68. Similarly, Steven Szczesniak stated that he always consulted defendant De Vita on how the project would proceed. Defendant DeVita' s See Affirmation in Support Exhibit F p. 44. Not only did defendant DeVita and Steven Szczesniak meet several times before the project began the entire construction period. See Defendant De Vita , but they met once a week during s Affrmation in Support Exhibit E pp. 6- 8. Similarly, Steven Szczesniak stated that he always consulted defendant DeVita on how the project would proceed. See Defendant DeVita s Affirmation in Support Exhibit F p. 44. Not only did defendant DeVita and Steven Szczesniak meet several times before the project began but they met once a week during the entire construction period. During these meetings defendant De Vita and Steven Szczesniak discussed sub-contractors. See Defendant DeVita details of the job cost for materials and payment of the s Affirmation in Support Exhibit F p.11; Plaintiffs Memorandum of Law. Defendant De Vita also supplied ceilng fans for the project and specifically told Steven Szczesniak where to install them. See Defendant DeVita s Affirmation in Support Exhibit E p. 30. In Henry v. Eleventh Avenue - N. S.2d _ 2011 WL 3310373 , the Appellate [* 5] Division , Second Deparment , observed as follows: Labor Law ~ 240(1) imposes liabilty upon owners and contractors who violate the statute by failing to provide or erect necessar safety devices for the protection of workers exposed to elevation-related hazards , where such failure is a proximate cause of the accident (see Balzer v. City of New York 61 AD. 3d 796 797 877 N. Y.S.2d 435). Labor Law 240(1) was specifically designed to prevent those types of accidents in which the scaffold , hoist , stay, ladder or other protective device proved inadequate to shield the injured worker from har directly flowing fro the application of the force of gravity to an object or person (Ross v. Curtis-Palmer Hydro-Elec. Co. , 81 N. Y.2d 494 501 601 N. 2d 49 618 N. E.2d 82). Labor Law 240(1) ' is to be construed as liberally as may be for the accomplishment of the (Rocovich purose for which it was thus framed' v. Consolidated Edison Co. 78 N. 2d 509 513 577 N. Y.S. 2d 219 583 N. prima 932 (internal quotation marks omitted)). To establish a violation of Labor Law ~ 240(1), a plaintiff must demonstrate that the defendants violated the statute and that the violation was the proximate cause of his or her injuries (see Andro v. City of New York 62 AD.3d 919 880 N. Y.S.2d 111; Reaber Connequot Cent. School Dist. No. 57 AD. 3d 640 641 870 Y.S. 2d 72). facie Labor Law ~ 240(1) and 241(6) exempt from liabilty owners of one and two- family dwellngs who contract for , but do not direct or control , the work. Y.2d 362 639 N. Y.S. 2d 778 (1996); (1995). Labor Law Khela v. See Bartoo Neiger 85 N. Y.2d 333 , v. Buell, 87 624 N. Y.S.2d 566 240 provides in pertinent par as follows: All contractors and owners and their agents except owners of one and two-family dwellngs who contract for but do not direct or control the work in the erection , demolition , repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect , or cause to be fuished or erected for the performance of such labor. . . devices which shall be so constructed , placed and operated as to give proper protection to a person so employed. See Labor Law 240(1) (emphasis added). A similar homeowner s exemption is found in Labor Law 241. In order to vitiate the exception , the owner must exercise direction and control over the [* 6] paricular aspect of the work from which the injur arose. 644 563 N. Y.S. 2d 16 (1990); VanAlstine v. v. See Cannon Putnam 76 N. Y.2d Padula 228 AD. 2d 909 644 N. Y.S.2d 386 (1st Dept. 1996). The exemption was enacted so that "the law would be fairer and more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hired to perform construction work on their homes. (2009) quoting Cannon v. AfJi v. Basch 13 N. Y.3d 592 , 894 N. S.2d 370 Putnam , supra at 649. Furher, whether a defendant's conduct amounts to direction and control depends upon the degree of supervision exercised over "the maner and method of the work to be performed. Y.2d 405 345 N. Id quoting Duda v. Rouse Constr. Corp. , 32 2d 524 (1973). The phrase " direct or control" must be strictly construed and applies only where the owner " supervises the method and maner of the work " can order changes in the specifications, reviews the progress and details of the job with the general contractor and/or provides the equipment necessar to perform the work. (2d Dept. 2004); Duarte Valentin Garcia See Miler v. v. Kolakowski Thirty-Four v. Feeney, Shah 3 AD. 3d 521 , 770 N. Y.S.2d 739 Petrakis 306 AD. 2d 315 , 760 N. Y.S. 2d 551 (2d Dept. 2003); East Hils Construction Corp. v. v. 274 AD.2d 493 , 711 N.Y.S. 2d 182 (2d Dept. 2000); Square Corp. 227 A. D.2d 204 AD. 2d 693 , 467 643 N. Y.S. 2d 157 (2d Dept. 1996); 612 N. Y.S.2d 243 (2d Dept. 1994). Involvement by the owner with minor details , such as matters pertaining to decorating, is not enough to establish control. 613 N. See McGuiness S.2d 697 (2d Dept. 1994); (2d Dept. 1993); Devodier Kelly v. v. v. Bruno Contemporary Interiors 205 AD.2d 739 Son 190 AD. 2d Haas 173 AD.2d 437 570 N. 777 , 593 N. Y.S.2d 555 S.2d 63 (2d Dept. 1991). It is undisputed that defendant DeVita submitted a letter to the Town of Glen Cove [* 7] stating that he was the general contractor on the renovation project. The letter also indicated that the proof of insurance for the sub-contractors was enclosed therein. Defendant De Vita testified that he wrote this letter so that he could obtain the permit as defendant Masterwork did not have Nassau County license. " This avoided any fees involved with obtaining the permit as well as fees that otherwise would have been passed along to Dr. DeVita by Masterwork for Masterwork having to obtain a new Nassau County license. Defendant DeVita s Affirmation in Support See ll; Defendant DeVita s Affrmation in Support Exhibit E pp. 11 , 31. Considering defendant DeVita s involvement in the project and his letter to the City of Glen Cove , an issue of fact exists as to whether defendant De Vita is entitled to the single family homeowner exception to Labor Law ~ ~ 240 and 241. With respect to plaintiffs claim based upon ~ 200 of the Labor Law, it is well established that in order to impose liability upon the property owner , not only must it be shown by the plaintiff that the owner exercised supervisory direction and control over the operation that brought about the injur, but it must also be shown that the propert owner had constructive notice of the alleged unsafe condition that caused the accident Metropolitan Life Insurance Company, Nevins v. 289 A. D.2d See Maldonado 176 , Essex Owners Corp. 276 AD.2d 315 , 714 N. 735 N. 2d 375 692 N. 2d 111 S.2d 38 (1 St. John s Hospital 268 A. D.2d 465 , 702 N. Y.S.2d 339 (2d Dept. 2000); Reisman Irrevocable Trust 263 A. actual or 2d 371 (1 (1st Dept. 2001); Dept. 2000); Pisciotta Dilena v. The Irving Dept. 1999). Furhermore , no liabilty wil attach to an owner under the common- law or ~ 200 of the Labor Law where the defective or dangerous condition arises from a contractor or subcontractor s methods or negligent acts occuring as a detail of the work and the owner does not exercise any supervisory direction or control over the operation. See Comes v. New York [* 8] Gas Corp. 82 N. State Electric Hydro-Electric Co. 81 N. Y.2d 494 601 N. 290 590 N. Y.S. 2d 55 (1992); 540. 664 N. 2d 876 , 609 N. Y.S.2d 168 (1993); Richichi v. S.2d 49 (1993); Lombardi Ross v. v. Curtis-Palmer Stout 80 N. Y.2d Construction Management Technologies 244 AD.2d S.2d 615 (2d Dept.1997). As noted above , an issue of fact exists as to whether defendant De Vita exercised any supervision , direction or control over the operation. Hence , neither par is entitled to sumar judgment on any of the causes of action alleged against defendant De Vita. Accordingly, defendant DeVita s motion (Seq. No. 01), pursuant to CPLR ~ 3212 , for an order granting him sumary judgment dismissing the Amended Verified Complaint is hereby DENIED. Plaintiffs cross-motion (Seq. No. 02), pursuant to CPLR ~ 3212, for an order granting him summar judgment on the issue of liabilty and setting this matter down for an inquest on the issue of damages is also hereby DENIED. The remaining paries shall appear for Trial in Nassau County Supreme Cour Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive , Mineola , New York on August 23 2011 , at 9:30 a. This constitutes the Decision and Order of this Cour. ENT ER: DENISE L. SHER, A. Dated: Mineola, New York August 22 , 20 II ENTEReD AUG 23 2011 NASSAU COUNTY COUNTY CLERK' S OFF.CE

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